Smith and Caltex Australian Petroleum Pty Ltd
[2003] AATA 1230
•8 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1230
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/679
GENERAL ADMINISTRATIVE DIVISION ) Re HAROLD SMITH Applicant
And
CALTEX AUSTRALIAN PETROLEUM PTY LTD
Respondent
DECISION
Tribunal Ms G Ettinger Senior Member
Dr M E C Thorpe MemberDate8 December 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] MS G Ettinger
Senior Member
CATCHWORDS
Seafarers compensation – claim for injury/aggravation of back of marine cook – several incidents - degenerative back - aggravation ceased – decision affirmed
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992 ss 3, 6 and 8
CASE LAW
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Australian Postal Corporation v Nadge, Federal Court, 463/1994, 21 June 1994
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 725
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
T Grassi Pty Ltd v Ellendale Estate Pty Ltd (1985) WAR 294
REASONS FOR DECISION
8 December 2003
Ms G Ettinger Senior Member
Dr M E C Thorpe Member1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Respondent, Caltex Australia Petroleum Pty Ltd made on behalf of Caltex/Ampol Shipping (“Caltex”), dated 31 March 2002 (T3), which affirmed the decision of the Respondent, dated 31 December 2001(T7). The decision made was that the Respondent had no liability under the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”) in connection with the claim for compensation made on 16 March 2001 (T8), by Mr Harold Smith, the Applicant in these proceedings.
2. The Applicant was represented by Mr B Dooley of counsel instructed by W G McNally & Co, and the Respondent by Mr B Ferrari of counsel, instructed by Ebsworth & Ebsworth Lawyers.
ISSUES BEFORE THE TRIBUNAL
3. The issues before the Tribunal were:
· Whether any injury Mr Smith suffered on 19 September 1985 on board “WM Leonard” has caused ongoing incapacity; and if so,
· Whether Mr Smith has suffered a loss of wages due to the fact that from 1989 to ceasing work in 1998 his injury in 1985 rendered him partially incapacitated, and unfit to engage in the work of a marine cook, rather that he had to work on restricted duties as a cabin attendant, hence earning lower wages.
· That from October 1998 and ongoing, Mr Smith is totally incapacitated for work as a result of injuries suffered on board “WM Leonard” on 19 September 1985.
RELEVANT LEGISLATIVE ENACTMENT
4. The relevant legislation in this matter was the Seafarers Rehabilitation and Compensation Act 1992, in particular sections 3, 6 and 8. As relevant they follow:
“General Definitions:
3. In this Act, unless the contrary intention appears:
“injury” means:
(a) a disease; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment;
Injuries suffered by employees
6. A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under this Act.
Incapacity for work
8. A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged immediately before the injury happened.”
THE EVIDENCE
5. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“The T-documents”) as Exhibit A1, and the following other Exhibits.
ITEM
DATE
EXHIBIT NUMBER
Reports of Dr John Sheehy, Neurosurgeon
2.12.86 4.9.86
20.7.8719.9.90
15.2.99 18.2.99 15.11.02Exhibit A2
Report of Dr H Jarvis
1 November 2002
Exhibit A3
Report of Dr Glen Valaire, Occupational Physician
8 December 1998
Exhibit A4
Report of Dr C Grace with NSW Workers Compensation Medical Certificate attached
24 February 2000
Exhibit A5
Report of Dr John Collins
2 July 1986
Exhibit A6
Reports of Dr Thomas Claffey
1 March 1985 and 12 April 1985
Exhibit A7
Reports of Dr James Royle
22 October 1984 and 1 February 1985
Exhibit A8
Patient’s Questionnaire and Medical File Notes of Applicant
15 July 1980
Exhibit A9
Report of Dr Peter Burke
7 September 1990
Exhibit R1
Report of Dr Peter Burke
5 April 1991
Exhibit R2
Report of Dr Peter Burke
21 January 1992
Exhibit R3
Report of Dr Peter Burke
2 December 2002
Exhibit R4
Respondent’s Amended Statement of Facts and Contentions with attachments
16 November 1999
Exhibit R5
6. Mr Smith and Dr Peter Burke, surgeon, gave oral evidence at the Hearing.
7. At the close of evidence, the Tribunal agreed that the parties could lodge written closing submissions, which were received some months after the Hearing.
EVIDENCE OF MR HAROLD SMITH - THE APPLICANT
8. Mr Smith whose date of birth is 13 June 1944, gave oral evidence before the Tribunal. He is separated from his wife and lives alone. He suffered various injuries, including to his left knee, while employed as a waterside worker.
9. He also suffered a lumbo-sacral injury when he fell from a four storey building in 1965.
10. Mr Smith commenced employment at Woollahra Council in 1979. When asked regarding an injury which occurred involving a crane and Mr Smith’s head, neck and thoracic spine, in June 1980, the Applicant said that the thoracic spine was not involved. When asked what he had hurt in that accident, Mr Smith told the Tribunal that he hurt the lower part of his back, but that he did not know how long he was off work, the Tribunal noting that the period was two months. He said that he went back to Woollahra Council, and then to sea as a ship’s cook on the “Iron Endeavour” from 3 July 1981.
11. Mr Smith gave an account of an incident on 25 July 1983 during which he injured his back on board the “Melbourne Trader” lifting a cauldron of 18 chickens full of water, weighing about 70 pounds. He said that he had pain at the top of his back between his shoulders. He said that he had never had pain at that site before. He was treated by Dr Alam, his general practitioner, and Dr Claffey, his orthopaedic surgeon, assisted in the administrative side of the business but could not recall what time he had off. He had two manipulations in April 1985.
12. In cross-examination it was put to Mr Smith that when he consulted Dr Alam on 27 June 1983, he did not tell Dr Alam that the pain was between the shoulder blades as he had told the Tribunal. Mr Smith said that the pain was in his back, radiating to the left side of the chest under the left breast. He said that he told Dr Alam that he felt a sharp pain, like a crack.
13. Mr Smith was then passed as medically fit, and returned to work, joining “WM Leonard” on 11 September 1985. “I was pain free when I joined the Leonard”, he said. Mr Smith said that he could not remember how long he had been on “Melbourne Trader”. Mr Smith recalled the work on “WM Leonard” was heavy, carrying boxes of frozen meat weighing 45 to 50 kgs, and loading and packing stores. Before the injury on 19 September 1985 he could do it all, without any trouble to his back he said.
14. The injury of 19 September 1985 occurred when Mr Smith was lifting two four gallon plastic buckets and felt a sharp pain between the shoulders. He said it was the same pain as in 1983, but more severe. The ship came into port, and he was taken to Gladstone Hospital, the Captain thinking he had suffered a heart attack.
15. Mr Smith told the Tribunal that after the 1985 incident, “things went downhill”, his pain was much worse, and he suffered a marriage break-up. He said that after the 1983 injury, things settled down, but that after the 1985 incident, things got progressively worse.
16. Mr Smith did not return to work until February 1989 after being cleared by the Commonwealth Medical Officer, and joined “Stolt Australia”.. He said that he did light duties as a crew attendant, and still suffered pain, but not as much as previously. Mr Smith explained there was one attendant and three stewards, and he could work at his own pace, cleaning the recreation room, hosing the toilets, mopping, setting up the mess for breakfast and washing the crew’s dishes. However, Mr Smith said that from 1995 the work became harder, involving more lifting, as there was less personnel.
17. Mr Smith acknowledged he had been treated by Drs Alam and Sheehy, and that there had been action in the District Court with a settlement in his favour, in 1992.
18. He recounted an incident when making up bunks in 1994, and said that he felt a sharp pain. Mr Smith recounted other incidents in which he had suffered pain, one at the end of 1994, and further ones in 1995 (left shoulder), and 1996. The Applicant said that in October 1998 he had suffered an incident while loading crates of milk, had felt a sharp pain between the shoulders, and had not worked since that time, suffering increasing pain.
19. Mr Smith said that he was on disability support pension and not looking for work, because he could not do so. He said that since 1992 he had not been fit to work as a second cook.
SUBMISSIONS AND CONCLUSIONS
20. The Tribunal had to take into account the evidence, submissions, case law and legislation to make the correct and preferable decision regarding Mr Smith’s entitlement to seafarers’ compensation pursuant to the Act.
BACKGROUND
21. In doing so, the Tribunal noted that McCredie J in the District Court decided on 1 April 1992 (T27/28), that Mr Smith suffered injuries on 25 July 1983, and 19 September 1985 in the course of his employment as a marine cook aboard the “Melbourne Trader”, and “WM Leonard”, being injury to his thoracic spine and chest, and was thereafter either totally or partially incapacitated for work for various periods.
22. His Honour found that as a result of the injury on 19 September 1985, to the same areas of Mr Smith’s body as in the incident of 1983, he was thereafter totally incapacitated until 11 September 1987.
23. His Honour found further, that as a result of both the 1983 and 1985 injuries, Mr Smith was totally incapacitated for work from 12 September 1987 to 6 February 1989, and that Mr Smith was partially incapacitated and unfit for his work as a cook in the maritime industry from 9 February 1989 to the date of his decision, 1 April 1992. His Honour apportioned the injuries between the two employers for whom Mr Smith worked when he sustained the injuries in 1983 and 1985, 40 and 60 percent respectively, and ordered payment of wages at various levels.
24. The Applicant cited Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 as authority for the proposition that the Tribunal was bound by the findings of the District Court. Mr Dooley submitted that the District Court dismissed the concept that Mr Smith’s back problems were due to Mr Smith falling four storeys from a building in 1966, and injuring his lumbo-sacral back. For clarification, the Tribunal has noted the Court’s statement at paragraph 11 of the judgment (T27/80), in which McCredie J stated that he preferred the evidence of Dr Sheehy to that of Dr Sorby-Adams who, his Honour stated, disputed there was any injury at all in 1983 and 1985, and attributed all of the Applicant’s problems to the fall. His Honour referred in particular to a lack of problems in the thoracic area after the fall, the fact that Mr Smith carried out heavy labouring work for many years afterwards, and stated relevantly:
“Dr Sorby-Adams seemed to totally discount the fact that after the 1966 incident, the Applicant had carried out heavy labouring type work for many years without any problems in the thoracic area. …”
25. The Tribunal noted that Mr Smith had injured his lumbar, and not his thoracic spine in that fall.
26. The Tribunal was mindful also of the Respondent’s submissions regarding the application of Rippon v Chilcotin (supra), emphasising that the claims before this Tribunal related to periods different from those in that case, and that accordingly it could be distinguished in that the principles in regard to re-litigation of the same issues, did not apply in this case. The Tribunal agreed with the submissions of the Respondent that the claim of Mr Smith before this Tribunal related to a different period, and that it was not a question of re-litigation of the same issues. The Tribunal also accepted that there was no issue estoppel in issue here.
27. By way of completeness the Tribunal noted that an earlier application in matter N1999/551 lodged by Mr Smith in this Tribunal was settled by agreement of the parties on 26 October 1999, the agreement being to affirm the decision of the Respondent of 5 February 1999 (T29/T61) which ceased liability on and from 5 February 1999 on the basis that Mr Smith was no longer incapacitated as a result of the injury suffered on 26 October 1998. The injury claimed to have been sustained on 26 October 1998 on board the “Stolt Australia”, was that Mr Smith suffered left thoracic cervical back injury as a result of lifting a crate of milk over the top of stores. The Tribunal noted that certain payment was made to Mr Smith as part of the agreement.
28. Mr Smith has not worked since 26 October 1998.
MR SMITH’S CLAIM BEFORE THIS TRIBUNAL
29. The Tribunal then moved to consider the claim by Mr Smith before this Tribunal, noting by way of background, that the Applicant whilst employed as a cook, sustained injury to his thoracic spine on 25 July 1983 whilst on board the “Melbourne Trader”. It was undisputed that the injury occurred when Mr Smith lifted a heavy cauldron with 18 chickens during the course of his duties. As noted above, Mr Smith was paid compensation for various periods.
30. He was certified fit, and returned to work as a cook on “WM Leonard” on 11 September 1985, continuing to work until he sustained a further injury on 19 September 1985. It was undisputed that that incident occurred when he was lifting two heavy four gallon buckets full of water containing potatoes and vegetables.
31. Mr Smith did not work in the intervening four year period, and was eventually certified fit to return to sea by the Commonwealth Medical Officer, recommencing on 8 February 1989. He worked on light duties on “Stolt Australia” as a cabin attendant, which position later involved heavier work as a caterer’s assistant (due to staff shortages).
32. The Applicant claimed to have sustained further injuries or aggravations in 1994, 1995, 1996 and finally on 26 October 1998, after which he claims he could no longer do even light work. The Applicant claimed however that the later injuries served to demonstrate that the injury of 1985 had set the stage for further aggravations, and that he has accordingly been incapacitated for work on an ongoing basis since October 1998.
33. Submissions made on behalf of the Applicant (paragraphs 15 – 17) indicated as follows:
“15. The applicant’s case is that as a result of the injury in 1985 that he has continued to be partially incapacitated up until the present time.
16. His partial incapacity is highlighted by the fact that after the 1985 injury, he has been unable to return to heavy work of a second cook and continued from that point of time to be only every (sic) fit for the work of a catering assistant/cabin attendant.
17. The aggravations from 1994 to 1998 point to and support the proposition that the applicant had a continuing problem with his back stemming from 1985.”
34. The Tribunal noted that the Applicant was examined and treated by a number of doctors, had a number of investigations carried out and underwent two manipulations. He relied in particular in regard to his claim, on the medical reports of Drs Alam, Sheehy and Claffey.
35. Not surprisingly, the Respondent relied on the medical evidence of Dr Burke to rebut the Applicant’s arguments and medical evidence. In their written submissions, both counsel also raised argument about admissibility of medical evidence, citing Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. The Tribunal noted further the submissions of the Applicant’s counsel made in his written closing submissions, that the Tribunal, in reliance upon Makita (Australia) Pty Ltd v Sprowles (supra), not accept the evidence of Dr Burke. The Tribunal has noted those arguments, and is mindful that pursuant to section 22(1)(c) of the AAT Act, it is “not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.” Accordingly, the Tribunal has considered all the medical reports before it in this matter, giving weight as appropriate to the opinions therein expressed, and noting that permanent impairment ratings made applying the incorrect criteria, (Dr Burke, Exhibit R4), for example, carry little weight. The Tribunal noted further that as the claim before it did not relate to permanent impairment, those parts of reports dealing with permanent impairment ratings could effectively be isolated and disregarded.
36. The Tribunal noted also submissions made on behalf of the Applicant, in which it was submitted that the Applicant’s doctors were the treating general practitioner, treating neurologist and treating orthopaedic surgeon, whereas the Respondent had placed reliance on the opinions of Dr Burke, who is a general surgeon. The Applicant submitted the Tribunal prefer the opinions of the Applicant’s doctors to those of Dr Burke.
37. In considering the submissions, the Tribunal was mindful that Dr Burke’s qualifications to give opinions in this case had not previously been questioned. The Tribunal was mindful also that he had examined Mr Smith several times, and accepted that Dr Burke was qualified to give expert opinion in this case. Further, the Tribunal has already stated above that each medical practitioner and his or her reports would be accorded certain weight.
38. The Tribunal moved then to consider Mr Smith’s 1965 fall.
SIGNIFICANCE OF THE FALL FROM A FOUR STOREY BUILDING
39. The Tribunal was mindful of Mr Smith’s evidence that he fell four storeys from a building in 1965, injuring his lumbo-sacral spine, and that due to the severity of the injury, he was off work for some eight to ten months at the time. The Tribunal noted further that McCredie J was aware of the implications of that injury when he awarded compensation for Mr Smith’s 1983 and 1985 injuries.
40. However the Tribunal was mindful that Mr Smith did not at first disclose the fall to all of his doctors.
41. In his first report dated 17 October 1983 (T14), which followed the injury of 25 July 1983, Dr Claffey, the Applicant’s treating orthopaedic surgeon described under the heading:
“Past illnesses” – he had had low back trouble and neck trouble when he was working for Woollahra Council two years ago.”
There was no mention of the 1966 fall.
42. Dr Burke’s evidence before the Tribunal was that when first examining Mr Smith, he asked Mr Smith about previous injuries, and had not been informed about the 1966 fall. In fact the Tribunal noted that Dr Burke in his first report, of 7 September 1990 (Exhibit R1), stated of Mr Smith: “His manner was vague.” It appears Dr Burke was first apprised of Mr Smith’s 1966 fall when he was supplied clinical notes of Dr Alam, Mr Smith’s general practitioner which referred to the fall (Exhibit R2 dated 5 April 1991).
43. The Tribunal noted the submissions regarding credit of Mr Smith, and his abovementioned non-disclosure of the 1965 fall to medical practitioners, and was mindful that during the course of the Hearing, Mr Smith remembered dates and events well when questioned by his counsel, but became non-responsive and appeared to suffer memory lapse under cross-examination. The Tribunal was generally not impressed by the reliability of Mr Smith’s oral evidence.
44. The Tribunal moved then to consider the radiological investigations relating to Mr Smith.
RADIOLOGICAL INVESTIGATIONS
45. The Tribunal had before it various reports of radiological investigations, noting Mr Smith’s evidence to his doctors that either his ex-wife had burnt the actual films (Dr Burke, Exhibit R1), or in the alternative, that they had been lost. Amongst the reports (but not actual investigations), available were:
· Dr H Scotton reported on 12 April 1996 (T36) that: “There is mild thoracic scoliosis convex to the left. Mid and lower thoracic spondylosis is present but not other significant bone, joint or disc lesion is seen.” The Tribunal noted that at T13/45 dated 24 December 1998, Dr Scotton concluded: “There is mild thoracic scoliosis convex left. Prominent lower thoracic spondylosis is present, with anterior bridging at some lower levels. No other bone, joint or disc lesion identified.”
· Dr M Houang (T13/44 dated 14 January 1999), who concluded; “early degenerative changes are seen in the lower thoracic spine as described. No protrusion is detected and the bony spinal canal and the spinal cord are normal.”
· Mr M Roberts (T13/46 dated 21 January 1999) who concluded with regard to an X-ray of the lumbosacral spine: “Alignment is essentially normal. The L4/5 and L5/S1 disc spaces are markedly narrowed with sclerosis and spurs of the endplates. The upper three lumbar discs are mildly narrowed. No focal bone destruction is seen. The facet joints appear relatively normal.”
46. Dr Claffey (T17) commented that Mr Smith had undergone a CT scan in December 1985 during which nothing significant was found.
47. In a report of 15 February 1999, (Exhibit A2), Dr Sheehy wrote to Dr Grech enclosing a recent report of an MR scan of Mr Smith’s cervical and thoracic spine. He said that there were “significant degenerative changes in both areas”.
48. In a further letter to Dr Grech dated 18 February 1999, (Exhibit A2), Dr Sheehy stated of Mr Smith’s plain x-rays:
“His plain x rays of the lumbar spine show loss of disc space height at the L4/5 and L5/S1 and in view of the combination of problems affecting both his neck, thoracic area and the lumbar spine, I am sure that the best advice is that he retire medically unfit from the sea.”
49. Dr H Jarvis, Mr Smith’s general practitioner since 1998, stated at Exhibit A3 that he had arranged X-rays of the Applicant’s lumbosacral spine on 29 January 1999 which showed “markedly narrowed disc space with sclerosis and spurs of the endplates mainly at L4/5 and L5/S1 disc spaces”. He also indicated he had results of X-rays taken on 10 August 2000, noting that the chest X-ray did not reveal any pathology of the dorsal spine, but that a subsequent X-ray (for which he did not give a date), suggested there were degenerative changes noted throughout the mid and lower dorsal spine.
50. In summary then, the Tribunal accepted from the radiological reports that mr Smith had narrowed disc spaces, mainly at L4/5 and L5/S1, in other words in relation to the lumbosacral spine, which was injured in the 1965 fall, and certain degenerative changes. However, even though there were some degenerative changes, none of the radiological investigations indicated there had been significant injuries to the thoracic and cervical spine. The Tribunal noted that the 1999 MR scan of the cervical and thoracic spine showed no evidence of injury or trauma, and that an early CT scan in 1985 showed no significant abnormality.
SIGNIFICANT MEDICAL EVIDENCE
51. The Tribunal had before it numerous medical reports which it has studied to come to its conclusions. The main ones are referred to below.
DR E JOHN ALAM – TREATING GENERAL PRACTITIONER
52. Reports of Dr Alam were before the Tribunal at T21 and T22 (in relation to medical records). In his report of 10 September 1990, at T21, Dr Alam gave a summary of Mr Smith’s medical history, including several injuries, stating that he had been treating Mr Smith and his family since the 1970s, and referring to various accidents and to various “aggravations of his thoracic spondylosis with characteristic girdle pains”. Dr Alam also discussed his referrals of Mr Smith to Drs Sheehy, Claffey, Collins and various physiotherapists.
53. The Tribunal noted that Mr Smith was under Dr Alam’s care at the time of both the 1983 and 1985 incidents. At T21/58, Dr Alam discussed referring Mr Smith to Drs Claffey and Collins in October 1985 because Mr Smith was complaining of: “chest wall girdle pain from the T5 to T6 nerve root irritation area”. Dr Alam who saw Mr Smith again on 18 November 1985, stated that he “continued to have localised tenderness over the middle thoracic area and extending out to the angle of the left scapula.” Dr Alam saw Mr Smith again in January, March and May 1986, referring him to Drs Collins and Sheehy. Dr Alam stated that Mr Smith continued with physiotherapy, analgesia and the TENS machine through 1986 and 1987.
54. The Tribunal noted that following a four year interval, Mr Smith was certified fit to go to sea as a crew attendant on “Stolt Australia” in February 1989.
55. The Tribunal noted that Dr Alam stated that the last time he saw Mr Smith was on 15 August 1989 after Mr Smith reported sharp pain in his thoracic spine following the unloading of “Stolt Australia’s” supply of frozen meat (August 1989).
56. Dr Alam opined:
“It has been my opinion all along that the aggravations of his Thoracic Spondylosis with characteristic girdle pains have been his chief trouble. These are extremely difficult to treat, often confusing to various medical attendant’s (sic) and need differentiation in the form of special tests … I feel that Mr Smith is liable to further symptoms from both his neck, thoracic & lumbar spines in any work capacity.” (T21)
DR T CLAFFEY – ORTHOPAEDIC SURGEON
57. The Tribunal had before it seven reports of Dr Claffey, Mr Smith’s treating orthopaedic surgeon.
58. The following three reports of Dr Claffey related to the incident of 25 July 1983.
· Dr Claffey at T14, (17 October 1983), which was not long after the injury of 25 July 1983, stated that: “This patient has had a muscular strain of his thoracic spine. I have told him that it is not spondylitis but spondylosis and these are two different things from the point of view of prognosis.
· In a subsequent examination dated 24 January 1984, (T15), Dr Claffey stated: “ I do not fully understand this patient’s complaints and can only call them muscular.” He found Mr Smith unfit at that time, and suggested injections of Xylocaine and Hydrocortisone if the pain persisted.
· A further report of Dr Claffey dated 1 March 1985 was before the Tribunal at Exhibit A7. In it Dr Claffey stated: “I still do not understand the severity of this man’s complaints. I would agree that a gentle manipulation under anaesthesia with some post hypnotic suggestion could be of value at this stage.” In a further letter at Exhibit A7 dated 12 April 1985, Dr Claffey reported to Mr Smith’s general practitioner, Dr Alam, after the manipulation he did, stating that Mr Smith had told him “the pain the thoracic area had gone although he felt a bit sore generally.”
59. The Tribunal noted that in the period following the 1983 incident, Dr Claffey commented that he considered the injury to have been muscular, and by March 1985 (Exhibit A7), was mystified at the severity of Mr Smith’s complaints.
60. The Tribunal noted that Mr Smith suffered a further incident when lifting two four gallon containers with water and vegetables on 19 September 1985. The next reports of Dr Claffey before the Tribunal related to Mr Smith following the incident of 19 September 1985, the incident Mr Smith relied on before the Tribunal to claim ongoing partial incapacity since that time.
· A report of 18 November 1985 by Dr Claffey was at T16. He referred there to the incident of 19 September 1985, during which it was thought Mr Smith may have been suffering a heart attack. Dr Claffey reported that Mr Smith reported “pain in the mid thoracic part of the spine posteriorly and passes girdle fashion around the left lower rib cage.”
· Dr Claffey re-examined Mr Smith on 31 January 1986 (T17). He commented that Mr Smith had undergone a CT scan in December during which nothing significant was found. He recorded that Mr Smith had told him that the pain was at the same site, and had been particularly strong recently. Dr Claffey also commented:
“This man still mystifies me. His clinical signs are minimal and yet he insists on considerable pain on activity. If it is coming from the thoracic spine as it would appear to be and the X rays do not reveal significant pathology, it might be worthwhile giving him some cervical traction to see if we can relieve any nerve root compression.”
61. Dr Claffey reported to solicitors for Mr Smith on 17 July 1987 that he had not treated Mr Smith since November 1985 although he had examined him at the request of Dr Alam on 31 January 1986 (T17). There he had reported that he had based his opinion on “the history as supplied in your letter” as a result of which he opined that “the incident of the 19th September 1985 constituted material aggravation of his underlying thoracic spondylosis.”
62. In assessing Dr Claffey’s findings, the Tribunal was mindful that he was Mr Smith’s treating orthopaedic surgeon who saw the Applicant over a period of time. The Tribunal accepted the opinion that by January 1985, Dr Claffey again expressed surprise at Mr Smith’s expressions of pain. Dr Claffey referred to the X-rays not revealing significant pathology, and opined that the clinical signs were minimal. When reporting to Mr Smith’s solicitors on 17 July 1987, (T18), Dr Claffey opined: “… the incident of the 19th September 1985 constituted material aggravation of his underlying thoracic spondylosis. Therefore it is my belief that his continuing disability is related to that incident.”
63. The Tribunal noted also Dr Scotton’s report (T36), in which he reported mid and lower thoracic spondylosis but no other significant bone, joint or disc lesion was to be seen. Dr Scotton again found no other bone, joint or disc lesion in examinations in December 1998 (T13).
64. The Tribunal also had before it eight reports of Dr Sheehy, neurosurgeon.
DR J SHEEHY - NEUROSURGEON
65. On 4 September 1986 (Exhibit A2), (following the incident of 19 September 1985), Dr Sheehy reported on his first examination of the Applicant which took place on 1 September 1986, stating that:
”There was no cutataneous change over the area of his pain. Tone and power in the legs were normal as were the deep tendon reflexes. Tone and power in the upper limbs were also normal. There was no alteration of pin prick appreciation over the right side of the body, there was non-specific reduction in pin prick at about the eight on the left. He was considerably heavier than was ideal for his height.”
66. In a further report at 2 December 1986 (Exhibit A2), Dr Sheehy reported that Mr Smith had undergone a thoracic Iopamidol myelogram, and as previously, referred to future weight loss which would be of assistance to relieve the pain.
67. In his report at T19, dated 20 July 1987, Dr Sheehy stated that he had first seen Mr Smith on 1 September 1986. Dr Sheehy referred to the history of both the 1983 and 1985 incidents, referring to the 1983 incident as “a thoracic soft tissue injury” with an exacerbation occurring in 1985. He stated that Mr Smith was unfit for work which involved bending or lifting at his first consultation on 1 September 1986.
68. In his report dated 19 September 1990, at T20, Dr Sheehy reported Mr Smith’s complaints of “pain in the lower thoracic spine just to the left of the spinous processes which radiated approximately half way round the chest wall.” He stated that he had advised Mr Smith to continue with his duties of cabin attendant (noting that he was unfit for duties which involved lifting or bending), and added that having been symptomatic for five years, it was unlikely there would be further improvement in Mr Smith’s symptoms.
69. In his report of 24 September 1990, (Exhibit A2), Dr Sheehy stated that he advised Mr Smith that was fit to perform the duties of a cabin attendant provided there was no bending or lifting, and advised him continue with his duties.
70. On 15 November 2002, (Exhibit A2), Dr Sheehy stated that Mr Smith was unfit for work involving repetitive lifting or bending. He opined that the prognosis for improving beyond that point was remote, and said that he would attribute 40 percent of the responsibility for Mr Smith’s ongoing disability to events occurring in 1985 and 60 percent to events subsequent to that time.
71. The Tribunal noted that Dr Sheehy first examined Mr Smith almost exactly a year after the 1985 incident, and referred to the 1983 incident as a “thoracic soft tissue injury” with an exacerbation occurring in 1985. His opinion was that Mr Smith was fit to perform the duties of a cabin attendant provided it did not involve repetitive lifting or bending.
72. The Tribunal had before it five reports of Dr Peter Burke, surgeon.
DR PETER BURKE – SURGEON
73. In his report of 7 September 1990, (Exhibit R1), Dr Burke reported that Mr Smith was obese. He did not see X-rays, and at first recorded Mr Smith as telling him these had been burnt by his ex-wife. Dr Burke opined that:
“On the basis of his history [the two lifting incidents aboard ship in 1983 and 1985 which Mr Smith reported], he lifted a particularly heavy weight and strained muscular elements on the medial aspect of the lower pole of the left scapula. There is no evidence of any more serious injury having occurred. The incident may have exacerbated underlying degenerative changes in the region of the mid dorsal spine. In my view, any such injury would have resolved completely within eight to twelve weeks of its onset, and indeed it would appear that he was able to return to work symptom-free at that time.
…
I was unable to explain the pattern of radiation [of pain] in rational anatomical terms.
…
There is now no evidence of any organic abnormality in the region concerned. There is no residuum of any work-related injury or condition. … There is no impairment of function as a result of his work experience.”
74. In his report of 5 April 1991, (Exhibit R2), Dr Burke stated that he had had the opportunity of reading Dr Alam’s clinical notes, which recorded Mr Smith’s fall from a four storey building, something Mr Smith had neglected to mention to Dr Burke. Dr Burke considered this the more significant injury, stating that he agreed with the views of Dr Sorby-Adams in a report dated 16 November 1990. Dr Burke stated that the 1983 and 1985 incidents may have strained muscular or ligamentous elements in the upper dorsal region, and that any previous back injury may have been temporarily exacerbated, but that such exacerbation would have resolved within a short period of time.
75. In his report of 21 January 1992, (Exhibit R3), Dr Burke commented on the severity of the 1983 and 1985 incidents, stating that the 1983 incident was the more serious according to the history given. He added: “I am again reminded of this man’s vague presentation and the fact that he did not reveal to me the existence of the 1966 accident.” Dr Burke also stated that:
”At the time of the 1985 incident, a rather dramatic extension of symptoms occurred to the left anterior chest at about the fourth intercostal region. It is difficult to explain an extension to such an area in rational anatomical terms, and considerable doubts must be thrown on the accuracy of his account. Nevertheless, for the purpose of this report I would accept that there was an extension of pain to some part of the anterior left chest.”
76. Dr Burke also emphasised that notwithstanding Mr Smith’s claim that he did not improve over the three years or so following the 1985 incident, and notwithstanding that he consulted a cardiologist and neurosurgeon, no specific action was taken, and he was approved for return to work aboard ship as a crew attendant.
77. Dr Burke also opined:
“It is difficulty (sic) to see how the incident in 1985 would have caused fairly constant symptoms for three years, such as that would require firstly workers compensation payments and thereafter sickness benefits. It is inconceivable how such a persistent and apparently serious problem could suddenly ameliorate to the point where he could return to shipboard duties.”
78. In his report of 31 October 2001, (T13), Dr Burke referred to radiological examination reports only (no actual studies being available), and gave a diagnosis as follows:
“1. Degenerative cervical spondylitis consistent with his age;
2. Moderate degenerative spondylitis in the thoracic area, and apparently minimal osteochondritis at the lower thoracic region;
3. Moderate but asymptomatic degenerative spondylitis at the lower lumbar region, apparently without thecal or nerve root embarrassment;
4. Moderately advanced osteoarthritis of the left knee;
5. Early osteoarthritic change at the right knee;
6. Gross obesity;
7. Apparent hypertension”
79. Relevantly Dr Burke also commented that:
“The generalised spondylitic change would appear to be present on a genetically determined basis. … The spondylitis at the lower lumbar region has apparently been affected by a serious fall from a building at a young age. … In my view, the present condition of his back is overwhelmingly due to a widespread degenerative process involving the whole of the spine.”
80. Dr Burke also discussed assessment of permanent impairment using a guide other than the appropriate Comcare “Guide to the Evaluation of Permanent Impairment”.. As there was no permanent impairment claim before the Tribunal, the Tribunal did not take those assessments into account.
81. In his report of 2 December 2002, (Exhibit R4), Dr Burke affirmed the diagnosis made in his previous report (T13), which has been discussed above, and opined that Mr Smith’s gross obesity would place him at risk in any work situation, further that the condition of his back would render him unfit for shipboard work.
dr burke’s oral evidence
82. When it was put to Dr Burke that the District Court had accepted Mr Smith’s injuries had been compensable from the injury in 1985 until 1992, Dr Burke replied that courts’ opinions and medical opinions were not naturally in harmony.
83. Dr Burke also said that he disagreed with other doctors who may have held the view that Mr Smith’s aggravations of his spine caused ongoing problems between 1985 and 1992. Dr Burke emphasised the significance of Mr Smith’s return to work in 1989 after recovering from the effects of the 1985 aggravation. He also emphasised the fact that Mr Smith was able to do the job of a cabin attendant which became more vigorous over time, and Mr Smith’s report to him that he suffered no further pain in his chest, and that he had suffered three further aggravations during the nineties, (doing heavy work), and finally ceasing work in October 1998.
84. Dr Burke also reiterated his view given in his written reports that the pattern of pain emanating from the chest in 1985 was inexplicable anatomically. Dr Burke also restated his view that the effects of the dramatic fall in 1966 were hard to exclude, and opined that this was by far the most serious injury Mr Smith had suffered. Dr Burke emphasised that the reports of Mr Smith’s X-rays showed he had generalised multi-level degenerative changes in his spine.
85. The Tribunal was mindful that Dr Burke first examined Mr Smith in 1990 when he opined that in the 1983 and 1985 incidents, the Applicant had strained muscular elements on the medial aspect of the lower pole of the left scapula which may have exacerbated underlying degenerative change in the region of the mid-dorsal spine. The Tribunal accepted his view that he would have expected such injury to have resolved within eight to twelve weeks of its onset, and was mindful that he added he was unable to explain the pattern of radiation of pain in rational anatomical terms. Dr Burke was not apprised of Mr Smith’s fall from a four storey building until reading Dr Alam’s notes in 1991. The Tribunal also noted Dr Burke’s observation that in the three years which followed the 1985 incident, and notwithstanding the involvement of a cardiologist and neurosurgeon, no specific action was taken in relation to Mr Smith and he was approved for return to work on board ship as a cabin attendant in 1989. The Tribunal found significant Dr Burke’s conclusion that the condition of Mr Smith was overwhelmingly due to a widespread degenerative process involving the whole of his spine.
OTHER MEDICAL EVIDENCE
dr j jarvis – general practitioner
86. The report of Dr Jarvis addressed to Mr Smith’s legal advisors, and dated 1 November 2002 was Exhibit A3 before the Tribunal. Dr Jarvis indicated that Mr Smith had only been a patient at his practice since 1998, and that he relied on the Applicant for a history of the earlier (1983 and 1985) incidents. He noted also that X-rays which he had ordered in 1999 and 2000, showed degenerative changes throughout the mid and lower dorsal spine. Dr Jarvis referred to work restrictions (no heavy duties or lifting and bending), and attributed the injuries Mr Smith suffered in 1983, 1985 and 1989 to tasks at work.
dr g valaire – occupational physician
87. Dr Valaire, whose report dated 8 December 1998 was at Exhibit A4, stated that when he examined Mr Smith on 17 November 1998, he had been suffering from “an acute musculoligamentous sprain of the cervical spine, which was an exacerbation of the previous injury” (26 October 1998). He opined that there was no evidence of any nerve root impingement and felt it should settle over six weeks.
88. Dr Valaire stated that:
“When it came to movement of his spine he appeared to be over-reactive and exaggerate his symptoms of pain. … Today there are many inconsistencies in aspects of his physical examination and demonstrate features of a person who is over-reactive and has tended to embellish his symptoms.”
89. Like most of the other doctors, Dr Valaire referred to Mr Smith’s obesity and to lifting restrictions. He recommended no further treatment, opining that the aggravation would settle within approximately six weeks.
WHAT TRANSPIRED BETWEEN 1985 AND 1998 AND THE PRESENT
90. Having considered all the medical evidence, including the reports mentioned above, the Tribunal was able to conclude that:
· Mr Smith has suffered a number of accidents. The Tribunal noted in particular a fall from a four storey building in 1965, which caused a serious injury to the Applicant’s lumbo-sacral spine. Dr Alam recorded that Mr Smith was “out of action” for 10 – 12 months as a result. Mr Smith did not disclose the fall to all the doctors who examined him (for example Dr Burke).
· The Tribunal has noted above that it was not impressed with Mr Smith’s evidence, in that he appeared to recall events well in examination-in-chief, but had memory lapses in cross-examination.
· The Tribunal accepted that Mr Smith suffered an aggravation to his thoracic spondylosis, in the course of his duties as a marine cook, whilst lifting heavy food containers, aboard the “Melbourne Trader” in 1983 (Dr Alam, Dr Collins, Dr Sheehy, Dr Jarvis and Dr Grace). Mr Smith returned to sea as a cook, and suffered a further incident aboard “WM Leonard” in 1985. Liability was accepted on both occasions by the employer, and Mr Smith remained off work until February 1989, when he joined “Stolt Australia” after being certified fit for cabin attendant duties (which did not include repetitive lifting or bending), by the Commonwealth Medical Officer. The evidence before the Tribunal which it accepted, was that Mr Smith’s duties became heavier as cost restrictions led to fewer staff being available, and that Mr Smith, notwithstanding certain further aggravations during the nineties, remained in the position for approximately nine years, until October 1998.
· The Tribunal accepted the results of radiological investigations which indicated Mr Smith had lumbo-sacral problems with L4/5 and L5/S1 disc spaces narrowed (T13/46).. The Tribunal accepted an early CT scan in 1985 showed no significant abnormality. The Tribunal noted further that there were significant degenerative changes in the cervical and thoracic spine (Dr Houang,T13/44 & Drs Sheehy, Exhibit A2, 1999).
· The Tribunal accepted the evidence of Dr Claffey, Mr Smith’s treating orthopaedic surgeon who back in 1983 (T17), and 1984 (T15), opined that Mr Smith’s injuries were muscular strains of the thoracic spine, and again in 1987, stated that the 1985 incident constituted material aggravation of Mr Smith’s underlying thoracic spondylosis.
· The Tribunal also accepted Dr Claffey’s statement at Exhibit A7, indicating a second time, that he did not understand the severity of Mr Smith’s complaints. Dr Claffey at T17 in 1986, stated that Mr Smith’s X-rays did not reveal significant pathology, and that notwithstanding complaints of pain by Mr Smith, the clinical signs were minimal. This was corroborated by Dr Burke who stated he was unable to explain the pattern of radiation of pain in rational anatomical terms.
· The Tribunal accepted Dr Sheehy’s opinion that the 1985 incident was an exacerbation of the thoracic soft tissue injury of 1983. In 1990, he advised Mr Smith to return to work as a cabin attendant without repetitive lifting or bending (T20).
· The Tribunal preferred the opinion of Dr Burke that the 1983 injury was likely to have been more serious than the one in 1985, and accepted that the 1985 injury was likely to have been an exacerbation of underlying degenerative changes in the mid-dorsal spine. The Tribunal also accepted the opinion that the effects of this had resolved well before the Applicant returned to sea in February 1989. The Tribunal noted the submission citing Australian Postal Corporation v Nadge Federal Court 463/1994, 21 June 1994, and was mindful that Lee J referred at paragraph 30 of the decision to a test formulated in Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163 approved by Burt CJ in F. and T. Grassi Pty Ltd v Ellendale Estate Pty Ltd (1985) WAR 294 at 297 as follows:
““That an injury or condition recurred when it played up either spontaneously or because of the ordinary stesses (sic) and strains of living and working and that any consequent incapacity would be related to the original accident. On the contrary, even though the first injury left a weakness, even a great weakness and a potential site of trouble, where that trouble is precipitated by a new incident of an accidental nature such as could well originate trouble in its own right, that trouble should be regarded as a new injury for which the latter incident is the direct cause." It was obviously a question of fact whether another injury had intervened to break the chain of causation between the original injury and the subsequent incapacity.”
· The Tribunal accepted the reports relating to X-rays of Mr Smith which indicated that he has generalised multi-level degenerative changes in his spine, noting that he may have suffered further aggravations to his degenerative spine as claimed during the 1990s, culminating with a cessation of work in 1998. The Tribunal noted however that Mr Smith worked on board “Stolt Australia” after being cleared by the Commonwealth Medical Officer from February 1989 for approximately nine years before he ceased work in October 1998.
· The majority of the doctors whose reports were before the Tribunal described Mr Smith as obese, and considered that a potential problem in his work.
· The majority of the doctors whose reports were reviewed also recommended that Mr Smith not do work which entailed repetitive lifting or bending, which the Tribunal accepted. McCredie J found on 1 April 1992 (T27/28) that Mr Smith was partially incapacitated for his work as a cook in the maritime industry from 9 February 1989 until the date of his decision on 1 April 1992. He also awarded compensation in recognition of the 1983, 1985, 1987 and 1989 incidents.
· Given the above discussed medical reports, and the results of the radiological investigations which indicate that Mr Smith suffers widespread multi-level degenerative changes to his spine, the fact that Mr Smith worked on “Stolt Australia” from 1989 to 1998, and in reliance on Australian Postal Corporation v Nadge (supra), the Tribunal could not be satisfied that Mr Smith is still suffering the effects of the 1985 incident. The Tribunal preferred the evidence of Drs Claffey and Burke that the incident was a muscular strain of the thoracic spine, Dr Burke opining that the effects would have subsided in a period of six to twelve weeks.. The Tribunal was further pursuaded by the opinions of Drs Claffey and Burke, Dr Claffey stating that he could not fully understand the severity of Mr Smith’s complaints, and Dr Burke opining that he was unable to explain the pattern of radiation in rational anatomical terms. Accordingly, the Tribunal finds that the effects of the 1985 incident had ceased before the Applicant commenced work on “Stolt Australia” in February 1989.
91. Accordingly there can be no further liability accepted, and no loss of wages for which Mr Smith has not already been compensated, incurred.
DECISION
92. The decision under review is affirmed.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member
Signed: N Glaser
AssociateDate/s of Hearing 13 March 2003; Written Submissions, 24 March 2003 & 25 June 2003
Date of Decision 8 December 2003
Counsel for the Applicant Mr B Dooley
Solicitor for the Applicant WG McNally & Co
Counsel for the Respondent Mr B Ferrari
Solicitor for the Respondent Ebsworth & Ebsworth Lawyers
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